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Friday, Jun. 15, 2001

The Supreme Court handed George W. Bush another important victory with its recent Good News Club v. Milford Central School ruling. Putting aside Bush v. Gore, the Good News decision is likely one of the most important high court wins of Bush's presidency — despite the fact that, tellingly, the M.B.A. president was neither a party nor an amicus.

In Good News, the high court recognized the religious speech rights of an after-school Christian youth club. In doing so, it also reaffirmed and broadened its earlier holdings that government must be neutral towards — not inhibiting of — religion.

Good News Club

serves as a pre-emptive victory against both litigation threats and actual court challenges to President Bush's faith-based initiatives. Its timing was politically providential: Faith-based initiatives will soon return as the centerpiece of Bush's domestic policy agenda, now that his tax cut is a done deal.

In 1997, the Supreme Court's Agostini v. Felton ruling — which allowed the integration of government-paid remedial math and English instruction into private religious schools — provided much-needed legal and polemic support for advocates of school "voucher" programs. This year, similarly, the Good News Club ruling will aid proponents of faith-based initiatives, including the President himself.

How Good News Club Got Started

When Reverend Stephen Fournier, who sponsored a Good News Club in the upstate New York village of Milford, sought to move his Christian youth group's meeting place to the one public school in town, he was not trying to make a federal case of his work or faith.

Rather, his decision was more a matter of car pool strategy — something every working parent should understand. Reverend Fournier's own three children attended the school, and his wife volunteered there. In seeking to move the Club to the school, he merely sought to join the several other external youth clubs, such as 4-H and the Boy Scouts, that used the school facilities after classes were dismissed.

But when Reverend Fournier applied to use a room, the school district said absolutely not. The Club was too much like a mid-week Sunday School, was the claim. There were Bible stories, praise, and prayer involved. Children might get the idea that the school was supporting God.

"Evangelism as hard sell" was how Club opponents described meetings. Children, they said, were evangelized with passionate pleas for their very souls — albeit pleas that were sandwiched between scripture memory games and lots of sugary treats. It was vacation bible school, after school — and children might think it was part of school.

The Club's opponents overstated their case, to say the least. Can a fourth grade student distinguish between a 2:00 p.m. Social Studies class and a 3:00 p.m., afterschool Good News Club meeting? Of course. The children can and do distinguish.

The Progress of the Good News Suit

The Fourniers then sued in federal court, arguing that the school district was engaging in "viewpoint discrimination." Initially, they won: A preliminary injunction allowed the Club to hold weekly after-school meetings in school facilities for a year, while awaiting trial.

But trial never happened. Instead, in August 1998, the federal trial judge vacated the injunction and summarily ruled in favor the school district. The Club's subject matter was ruled "decidedly religious in nature, and not merely a discussion of secular matters from a religious perspective." As a result, the Club was kicked out of the building.

On appeal, two judges of a three-judge panel of the United States Court of Appeals for the Second Circuit agreed with the trial judge. The panel ruled that because the subject matter of the Club was "quintessentially religious" and fell "outside the bounds of pure moral and character development," the Club could not be allowed to hold meetings in the government building. In short, there was just too much bible study and praise for the Second Circuit's liking.

The dissenting judge, to no avail, reminded his brethren that the Supreme Court's earlier ruling in Lamb's Chapel v. Center Moriches Union Free School District remained binding precedent, and thus demanded the appellate court rule for the Club. Judges, too, are bound by the law.

Lower Court Disobedience

The dissenting judge was absolutely correct. The issue of how courts should address religious speech that takes place in a limited public forum had already been firmly and finally settled not only by the 1993 decision in Lamb's Chapel, but also by the 1995 ruling in Rosenberger v. Rector and Visitors of Univ. of Va..

Taken separately, or as a pair, the two rulings were — and are — crystal clear that that religious speech, even in a limited public forum, is fully protected by the Free Speech Clause of the First Amendment.

Nevertheless, not only the Second Circuit panel's majority, but also other lower federal judges across the nation chose to flout these two high court rulings. The Eighth and Tenth Circuits followed the high court's precedent. But the Second, Fifth, and Ninth Circuits either ignored it or found creative ways to distinguish it — twisting logic so as to authorize blatant discrimination against religious speech. That gave rise to the need for the Court to intervene, and lay down the law in Good News.

After reading the Good News Club record, it is tempting to query whether some lower court judges were purposely resisting the Rehnquist Court's approach — just as, in the past generation, some Southern federal judges once purposely delayed and circumvented the implementation of the high court's racial desegregation mandate in Brown v. Board of Education.

A Prescient Warning of Federal Court Usurpation

This is the exactly kind of abuse of power that was warned against during the very founding of the Republic.

In 1788, Brutus (a.k.a. Robert Yates) predicted that federal judges will "soon feel themselves Independent of heaven itself." He was prescient.

Yates, who was a New York state judge, had gone to the Philadelphia Convention the year before — only to walk out mid-summer and work against ratification. Yates well knew the unique propensity of government officials who rise to the bench to usurp extra power.

Judge Yates specifically predicted that because "the dignity and importance of the [federal] judges" would grow in direct "proportion to the extent and magnitude of the powers they exercise as federal judges," they would "construe the constitution as much as possible, in such a way as to favour" their power.

In no area of constitutional interpretation (save perhaps for the judicial creation of abortion "rights") has Brutus' prediction been proved more accurate than the area of the Establishment Clause. There, federal judges have repeatedly expanded their power and limited the free exercise of religion

The Warren Court and its lower bench brethren demonstrated a particular bias against religion — cloaked in the mythology of absolute church-state separation. Decreeing a secular society, they usurped power to become, as George Will and others have described, our "robed masters." Or, as the old wag said, seeing a local federal judge stroll into his courthouse; "There but for the grace of God, goes God."

High Court's Mandate: Don't Discriminate Against Religious Speech

Fortunately, in Good News, the Supreme Court, in a 6-3 decision, reminded lower federal courts that they were not, in fact, God. Clarence Thomas wrote a very direct opinion for the majority of six justices, which not only resolved the Circuit split but also sent a clear message.

Justice Thomas focused his analysis on the discrete question of whether the school district could engage in viewpoint discrimination, simply because the speech was religious. He easily applied the Court's 1993 Lamb's Chapel precedent, and chastised the Second Circuit for not doing the same: "We find it remarkable that the Court of Appeals majority did not cite Lamb's Chapel, despite its obvious relevance to the case….[T]his oversight is particularly incredible because the majority's attention was directed to it at every turn."

Thomas could see no logical Free Speech Clause difference between the invocation of Christianity by the Club and "the invocation of teamwork, loyalty, or patriotism" by other after school groups. Thus, he rejected the Second Circuit's determination that reliance on Christian principles uniquely "taints" moral and character discussions.

He also, and similarly, rejected the argument that the K-12 public school would be "endorsing religion" by subjecting its young children to coercive peer pressures: "We decline to employ Establishment Clause jurisprudence using a modified heckler's veto, in which a group's religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive."

While Justice Breyer and Scalia's concurrences expand the discussion, and Justice Stevens' and Souter's dissents are predictably passionate, Justice Thomas' majority opinion will be long remembered in religious liberty jurisprudence.

Princeton University's Robert George analyzed the Court's ruling with appropriately broad praise: "A solid majority of justices is serious about the proposition that the state and its institutions is not permitted to discriminate against religious expression, association, and activity simply on the ground that it is religious."

How the President Can Use the Good News Ruling

Professor George is right, but it is now up to President Bush to make good use of the solid Court majority to enact religious nondiscrimination in America. It is equally crucial that that the Bush Administration make certain, through assertive use of the Executive's appointment authority, that the high court majority stays solid.

The lower court history of Good News Club reaffirms the wisdom of the Bush Administration's geographically targeted appointment strategy for lower federal judges, especially in light of the 50-member plurality of Democrats in the Senate.

Bush's initial appointment energies should be directed at reinforcing those Circuits that already lean strongly towards strict interpretation of the Constitution. The President should also attempt to save any Circuits that can be redeemed from the Clinton years. Finally, the President should plant "mustard seed" judges throughout other Circuits that may still reject strict constructionism. Meanwhile, the Bush White House must prepare, prepare, prepare for the upcoming war over Supreme Court appointments.

Victor Williams, a FindLaw guest columnist, teaches law and is Director of the Lawyering Skills Program at the Catholic University 's School of Law in Washington, D.C., and is an adjunct professor at the University of Virginia's Northern Campus. He holds a J.D. from the University of California–Hastings and LL.M. from the Columbia University Law School. Professor Williams can be reached at

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